Reflexive-adaptive law could lead us through the maelstrom of energy transition

The European Union, including the Baltic States, faces significant challenges in switching to renewable energy and reducing reliance on fossil fuels, particularly on imports of Russian natural gas. A recent study shows how more flexible and resilient rules can ease this transition, especially in the current turbulent geopolitical climate.

The European Union (EU) faces unprecedented energy challenges. One of the most pressing challenges emerged after the invasion of Ukraine, when the EU struggled to reduce its reliance on Russian natural gas. Meanwhile, switching from fossil fuels to renewable energy is essential for meeting the 2050 climate goals. Ensuring a smooth transition is essential to ensure energy security and diminish dependence on Russian gas. If Europe fails to manage this transition effectively, it could become vulnerable both environmentally and geopolitically, potentially causing another energy crisis like the one in fall 2021, which saw soaring energy bills and fears of supply disruptions.

In addition to technology, smooth energy transition demands a resilient regulatory and more flexible legal system capable of addressing uncertainties and unexpected changes. This system must absorb abrupt changes—such as geopolitical shifts, economic volatility, or market disruptions—without compromising normal operations or straying significantly from climate strategies. For instance, when Moscow reduced its natural gas supply to the EU in the fall of 2021, the EU could have quickly implemented measures with a resilient legal framework to address vulnerabilities while staying aligned with climate objectives.

A Reflexive-Adaptive Approach

To address these evolving energy challenges, I developed a regulatory approach as part of my PhD thesis – called ‘reflexive-adaptive’ to tackle these challenges. It combines climate goals with the practical needs of the existing energy regulatory system. By enhancing the flexibility and resilience of the legal framework, this strategy reduces risks linked to the transition from natural gas to renewable gases like hydrogen and biomethane, while ensuring energy security. This approach is crucial for aligning the diverse energy policies of EU member states into a cohesive strategy, especially in the context of rapidly changing global dynamics. 

A reflexive-adaptive legal system has three main features. Firstly, it involves various stakeholders, including the regulated entities and the state, in the process of rulemaking. This shared regulatory responsibility empowers different groups to regulate themselves, reducing reliance on centralised authorities like national governments or EU institutions, thus improving the system’s ability to swiftly adapt to the changes required during the transition. At the same time, central authorities define overarching regulatory frameworks to ensure decisions align with the established principles.

Secondly, this system brings self-learning to front, enabling entities to continuously adapt and revise regulations based on real-time information, shared experiences, and feedback. Thirdly, it emphasises climate change considerations and objectives, prioritising them over conventional legal norms to ensure the achievement of climate goals. 

Applying this approach delivers a flexible yet robust legal definition of security of supply. It allows for the assessment of whether and to what extent member states’ energy decisions in transition period enhance the collective security of supply within the Union. This includes actions such as reducing dependence on Russian oil and natural gas, while still adhering to EU’s climate strategy. This definition can then be invoked by other member states or the European Commission to warn member states about their decisions that breach the Union’s collective interests.

Additionally, this approach also drives the creation of necessary rules and regulations to support the smooth integration of renewable gases, such as biomethane and hydrogen. Reflexive-adaptive law ensures that while fundamental principles governing energy markets, such as unbundling and liberalisation, are adapted to emerging renewable gas markets, they remain flexible enough to encourage investments.

At the same time, these regulations ensure that the shrinking natural gas market continues to function smoothly and remains unaffected until all final consumers have switched to renewable energy. This flexibility allows the legal system to swiftly adapt decisions within the framework of established principles. By enabling quicker responses to disruptions, it helps to safeguard stable energy supply and maintain a continuous supply.

Finally, a reflexive-adaptive approach also helps to advance market integration within smaller states like the Baltic States. It requires governments to adopt a flexible stance on market entry and participation, reinterpreting national interests through the lens of energy security and cost-benefit analysis. This method promotes coordination between different sectors, particularly electricity and gas, while enhancing cross-border cooperation to accelerate climate goals.

Innovative Solutions for a Complex Transition

My study bridges legal theory and practical application, advocating for a legislative environment that supports energy diversification and resilience. It identifies gaps in current regulations and proposes innovative mechanisms to incentivise sustainable energy investments while ensuring an uninterrupted energy supply across Europe. The study’s key findings show how effective reflexive-adaptive law is in improving regulatory responsiveness and engaging stakeholders. By empowering national regulatory authorities and promoting cross-border collaboration, the framework promotes cohesive energy policies that foster long-term sustainability.

However, the transition to a decarbonised energy system is not without hurdles. Coordination among EU member states and continuous adaptation of regulatory frameworks are essential. Addressing these challenges requires sustained commitment and innovation in both energy policy and governance. Additionally, the limitations of EU expert agencies and member states in overseeing complex energy systems need attention, requiring ongoing research and development to improve regulatory systems. 

By championing adaptive governance and encouraging innovation, societies can handle the complexities of the energy transition with resilience and foresight. This approach not only tackles immediate challenges but also ensures a sustainable and secure energy future for Europe

Author of this article is Javad Keypour from Tallinn University of Technology. Editor Jaan-Juhan Oidermaa.
Article written for the contest “Science in 3 minutes” organised by Estonian Academy of Sciences and The Estonian Young Academy of Sciences (EYAS). Main sponsor of the competition is Inclusive Financial Technology Foundation.

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